I dissent. At a time when the plaintiff and his associates were lawfully occupying positions as members of the board of health, the mayor undertook to remove them and to appoint other persons in their places. While the fact is not stated in so many words, it appears clearly enough from the averments of the complaint that the mayor took this action without any notice to the incumbents and without affording them any opportunity to be heard in their defense. On January 31, 1910, the persons appointed as successors went to the rooms occupied as the offices of the board of health. The plaintiff and his associates were not present, but demand was made of an inspector that such new appointees be admitted to the rooms of the board. It was found that the rooms were locked, whereupon, after unsuccessful efforts to gain entry through the window and by means of a fire-escape, recourse was had to the services of a locksmith, who opened the door. The new appointees then took possession of the rooms and of all the official records and papers of said board. Two days thereafter, on February 2, 1910, the plaintiff verified the complaint herein, and the action was commenced on the fourth day of February. The plaintiff and his associates never acquiesced in the attempt to remove them from office and never abandoned their offices. On the contrary, they proceeded with all reasonable diligence to assert their rights to possession, and their intention to contest the legality of the mayor's action.
On these facts it seems clear to me that the plaintiff was entitled to the injunction which he sought. It is, of course, the established rule that a court of equity will not take jurisdiction of an action for the purpose of trying the title to public office. But it is also well settled that where there is abona fide contest between two persons, both claiming to be entitled to the same office, a court of equity will issue its injunction to protect the officer in possession against the interference of *Page 688 an adverse claimant until the latter has established his title by appropriate proceedings at law. (High on Injunctions, 3d ed., sec. 1315; Brady v. Sweetland, 13 Kan. 41; Braidy v. Theritt,17 Kan. 468; Guillotte v. Poincy, 41 La. Ann. 333, [6 So. 507, 5 L.R.A. 403]; Goldman v. Gillespie, 43 La. Ann. 83, [8 So. 880]; State v. Superior Court, 17 Wn. 12, [61 Am. St. Rep. 893, 48 P. 741]; Reemelin v. Mosby, 47 Ohio St. 570, [26 N.E. 717];City of Huntington v. Cast, 149 Ind. 255, [48 N.E. 1025];Sullivan v. Haacke, 5 Ohio N.P. 26.) The soundness of this proposition is not questioned in the main opinion. It is, however, stated that on the facts here shown the new appointees, rather than the plaintiff and his associates, were in possession of the office. I think this conclusion rests upon a mistaken view as to what constitutes possession of an office. An office is a franchise; it consists of the exercise of intangible rights and duties pertaining to its occupant; and possession of the office does not depend on the mere physical holding of the rooms and furniture ordinarily used in the performance of the functions of the office. (Mead v. Treasurer, 36 Mich. 416; Lawrence v. Hanley,84 Mich. 399, [47 N.W. 753]; Brady v. Sweetland, 13 Kan. 41;Braidy v. Theritt, 17 Kan. 468; Sullivan v. Haacke, 5 Ohio N.P. 26.) Actual possession can be obtained from the occupant of an office by his surrender or abandonment of the office, or by his ouster in the course of legal proceedings, and in no other way.(Oliver v. Jersey City, 63 N.J.L. 653, 76 Am. St. Rep. 228, 44 A. 709, 48 L.R.A. 412]; Mead v. Treasurer, 36 Mich. 416; State v. Draper, 48 Mo. 213; Hallgren v. Campbell, 82 Mich. 255, [21 Am. St. Rep. 557, 46 N.W. 831, 9 L.R.A. 408]; Braidy v. Theritt,17 Kan. 468; In re Cleveland, 51 N.J.L. 311, [17 A. 772].)
If the plaintiff and his associates had been in session as a board of heath at the time of the entry of the persons assuming to act as their succesors, and the latter had forcibly thrown them out of the rooms and installed themselves therein, it would hardly, I think, be claimed that possession of the office had at once passed from the old board to the new. I do not think the case is any different where, in the absence of the occupant, access to the rooms is obtained surreptitiously or, as in this case, by the use of such force as is involved in picking the lock of the door. "It would be a strange doctrine to *Page 689 announce," says the court in Braidy v. Theritt, 17 Kan. 468, "that whenever an officer steps out of the place where he usually does business, that any person who may choose to claim the office may at once step in, and become immediately an officer de facto. Such a short road to obtain a contested office has never yet been opened." A person asserting title to an office which he finds to be occupied and claimed by another should not be permitted to establish his disputed right by resort to the kind of means here employed. Nothing can be more unseemly or detrimental to the public interest than a struggle between contending claimants for the physical possession of rooms, documents, and records employed in the performance of the functions of a public office. Proceedings in the nature of quo warranto (Code Civ. Proc., secs. 803 to 810) furnish an adequate and the appropriate remedy for usurpation of office. This is, indeed, recognized by the majority opinion, but I think the court misapplies the doctrine in saying that this remedy was open to the plaintiff. In my view the plaintiff, being first in possession and not having surrendered or abandoned his right, was entitled to the protection of the writ of injunction. The defendants, who were seeking to oust him, were the ones who should have been compelled to resort to proceedings in a court of law to establish their right. Scott v.Sheehan, 145 Cal. 661, [79 P. 353], should not be regarded as an authority supporting the position of the respondents here. The decision in that case was made immediately after the disputed question of title to the office had been finally adjudicated(Sheehan v. Scott, 145 Cal. 684, [79 P. 350]), and the appeal from the order of injunction presented a moot question, or as the court puts it, one "purely of academic interest." Under these circumstances the finding of the trial court was sustained without a careful examination of the evidence.
I think the judgment should be reversed.
Angellotti, J., and Beatty, C.J., concurred.
Rehearing denied.
In denying a rehearing, the following opinion was rendered on October 7, 1911: — *Page 690